Khan v State of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill,Lord Steyn,Lord Millett |
| Judgment Date | 20 November 2003 |
| Neutral Citation | [2003] UKPC 79 |
| Court | Privy Council |
| Docket Number | Appeal No. 28 of 2003 |
| Date | 20 November 2003 |
[2003] UKPC 79
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Millett
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
[Majority judgment delivered by Lord Bingham of Cornhill]
On 18 May 2000 the appellant, Haroon Khan, was convicted of murder and sentenced to death. His appeal against conviction was dismissed by the Court of Appeal of Trinidad and Tobago on 30 January 2001. He now appeals by special leave of the Board against both conviction and sentence. His appeal against conviction is primarily based, and his appeal against sentence solely based, on constitutional grounds.
An elderly Chinese man named Lau Hing Young lived and operated a beer garden at premises in San Fernando. On 6 October 1998 his premises were robbed and he was injured. He died of his injuries two days later. The prosecution case was that the robbery had been carried out by four assailants: the appellant, Imtiaz Ishmail, Rishi Samaroo and Junior Thwaites. The appellant, Ishmail and Samaroo were charged with murder in a single indictment. Thwaites was not indicted: he was granted immunity and testified for the prosecution.
At trial, each of the defendants resisted admission of statements he was alleged to have made, but following voir dire hearings the statements were ruled to be admissible. After some prosecution evidence had been called, Ishmail and Samaroo were re-arraigned and pleaded not guilty to murder but guilty to manslaughter. The prosecution accepted those pleas. No application was made that the jury should be discharged and a fresh jury empanelled to try the appellant. The trial judge warned the jury in emphatic terms that the pleas of guilty to manslaughter by Ishmail and Samaroo should not affect their minds in any way in relation to the appellant and the trial against him proceeded.
In the course of his summing-up the trial judge directed the jury in these terms:
"Mr Foreman and Members of the Jury, there is one other matter which I wish to draw to your attention and explain very carefully to you. As I told you, I am the judge of the law, I have to point out the law to you. Section 2 of the Criminal Law Amendment Act reads as follows:
'Where a person embarks upon the commission of an arrestable offence, involving violence, and someone is killed in the course or furtherance of that offence, he and all other persons engaged in the course or furtherance of the commission of that arrestable offence are liable to be convicted of murder even if the killing was done without intent to kill or cause grievous bodily harm.'
What the law says, is if a person embarks upon the commission of an arrestable offence, for example, robbery, burglary, a sexual offence, any offence for which he can be arrested that involves violence, that such a person can be convicted of murder even if the killing was done without intent to kill or cause grievous bodily harm. This is the extent of the law. It is known briefly as the murder felony rule which came into force July, 1997, before the commission of this offence. It basically says, where a person goes to commit an arrestable offence if a person is killed, it is not necessary to prove intent. Even if the person can be convicted of murder, even if the killing was done without intent to kill or cause grievous bodily harm, once the person is killed that is the extent of this law."
Although the judge rehearsed the evidence at some length he did not direct the jury on the legal ingredients of the crime of robbery. After a retirement of less than one and a half hours the jury convicted the appellant of murder.
The appeal against conviction
The appellant's main submission under this head was directed to the constitutionality of section 2A of the Criminal Law Act 1979 as inserted by section 2 of the Criminal Law (Amendment) Act 1997 which reads, in full, as follows:
"2. The Criminal Law Act is amended by inserting immediately after section 2 the following new section:
2A.(1) Where a person embarks upon the commission of an arrestable offence involving violence and someone is killed in the course or furtherance of that offence (or any other arrestable offence involving violence), he and all other persons engaged in the course or furtherance of the commission of that arrestable offence (or any other arrestable offence involving violence) are liable to be convicted of murder even if the killing was done without intent to kill or to cause grievous bodily harm.
(2) For the purpose of subsection (1), a killing done in the course or for the purpose of —
(a) resisting a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;
(b) resisting or avoiding or preventing a lawful arrest; or
(c) effecting or assisting an escape or rescue from legal custody,
shall be treated as a killing in the course or furtherance of an arrestable offence involving violence.
(3) In subsection (2), 'member of the security forces' means a member of —
(a) the Police Service;
(b) the Prison Service;
(c) the Fire Service;
(d) the Defence Force;
(e) the Supplemental Police established under the Supplemental Police Act."
This section must be read with section 3(1) of the Criminal Law Act:
"3.(1) The powers of summary arrest conferred by the following subsections shall apply to capital offences or offences for which a person (not previously convicted) may under or by virtue of any written law be sentenced to imprisonment for a term of five years, and to attempts to commit any such offence; and in this Act, including any amendment made by the Law Revision ( Miscellaneous Amendments) (No 1) Act 1979 in any other written law, 'arrestable offence' means any such offence or attempt."
The insertion of section 2A into the Criminal Law Act by section 2 of the 1997 Act is readily explained. For many years before 1979 the felony murder rule, permitting murder convictions based on what was called constructive malice, had formed part of the criminal law of Trinidad and Tobago. It was a rule which had grown up and developed in England and Wales (it had no counterpart in Scotland) and had been adopted in many countries of the Commonwealth. Its purpose and effect were to penalise those who engaged in serious crimes of violence if death, even unintentionally, resulted. Because the rule exposed to the risk of conviction of murder defendants lacking the intention otherwise necessary to convict of murder the rule was widely perceived to operate unfairly, and it was the subject of strong criticism by (among others) Sir James Stephen ( Digest of the Criminal Law, 1st ed, 1877), the Report of the Royal Commission on Capital Punishment (1953) (Cmd. 8932), paras 72-121 and appendix 7, and Professor David Lanham, "Felony Murder – Ancient and Modern" (1983) 7 Crim LJ 90. In 1957, doubtless in response to the Report of the Royal Commission, the rule was abolished in England and Wales.
The distinction between felonies and misdemeanours was abolished in England and Wales ten years later, in 1967. In Trinidad and Tobago this distinction was abolished in 1979: section 2(1) of the Criminal Law Act 1979 as substituted by section 2(1)(a) of and Schedule 1 to the Law Revision ( Miscellaneous Amendments) (No 1) Act 1979 provided that "All distinctions between felony and misdemeanour are hereby abolished". It was not immediately recognised that abolition of the distinction between felony and misdemeanour had affected the operation of the felony murder rule in Trinidad and Tobago, a rule which this Board had upheld and applied in Gransaul v The Queen ( unreported, 9 April 1979) very shortly before the distinction was abolished. In Moses v The State [1997] AC 53, however, a defendant who had been convicted of murder following a conventional direction to the jury in accordance with the felony murder rule succeeded in challenging his conviction. The Board held that the felony murder rule had ceased to apply when the distinction between felony and misdemeanour had been abolished. The Board's judgment in Moses was given on 29 July 1996. Exactly a year later, on 29 July 1997, assent was given to the 1997 Act, inserting section 2A into the Criminal Law Act. The legislative intention was plainly to rectify the oversight which had occurred when the distinction between felonies and misdemeanours had been abolished without preserving, in an appropriately modified form, what had been the felony murder rule. That was what section 2A sought to achieve by its reference to "an arrestable offence involving violence", although it seems that that expression could include some violent offences which would not under the old law have been felonies. Thus the appellant's challenge to the constitutionality of section 2A raises a very important question: whether, consistently with the powers conferred on it by the Constitution of the Republic of Trinidad and Tobago Act 1976 and the Constitution set out in the Schedule to that Act, the Parliament of Trinidad and Tobago could lawfully enact section 2A.
Section 1(1) of the Constitution provides that the Republic of Trinidad and Tobago shall be a sovereign democratic state. By section 2
"This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency."
Section 53 empowers Parliament to "make laws for the peace, order and good government of Trinidad and Tobago", language which connotes "the widest law-making powers appropriate to a Sovereign" ( Ibralebbe v The Queen [1964] AC 900, 923) and is "apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to" ( Riel v The Queen (1885) 10 App Cas...
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